Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedSotik Land Dispute Tribunal Case No. 13/2010 (Notice of Motion dated 18/12/2015)· [2018] KEELC 1988 (KLR)

Benedeta Cheruto Mabwai v William Rono & another [2018] KEELC 1988 (KLR)

High Court of Kenya (Kericho)
28 August 2018
988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The High Court in Kericho dismissed a delayed application to stop execution of a land dispute decree, because the proper route was judicial review, not a fresh suit.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 18 December 2015, the Plaintiff sought a temporary stay of execution of a decree issued on 15 October 2015 in Sotik Land Dispute Tribunal Case No. 13/2010, together with consequential orders, pending determination of an intended suit challenging the Tribunal's verdict and its adoption by the court. The Respondent opposed by a replying affidavit sworn on 13 March 2018 and filed a preliminary objection arguing that the applicant, having failed to challenge the 2010 adoption decision by way of judicial review, could not do so by plaint, rendering the application irregular, unprocedural and an abuse of process. Framing the single issue as whether the applicant had satisfied the conditions for a stay of execution, Onyango J applied the Global Tours and Travels principles (delay, arguability, interest of justice, security) as adopted in the Kenya Power & Lighting case. The court found that the decision had been made on 12.8.10, that the lengthy delay in moving to challenge it had not been adequately explained, and that a previous similar application had lain unprosecuted. Guided by Khamoni J's decision in the Kirinyaga Land Disputes Tribunal judicial review case, the court held that the applicant ought to have sought judicial review to quash the judgment adopting the Tribunal's decision rather than filing a plaint. The court found it unnecessary to examine the other grounds for stay, dismissed the application with costs to the Respondent, and delivered the ruling at Kericho on 28 August 2018.

Key legal issues

#
01

Whether the applicant satisfied the conditions for stay of execution

Holding

The application failed on the delay requirement and was incompetent because the proper remedy was judicial review of the adoption judgment, not a plaint

Reasoning

The decree was issued on 15/10/2015 but the decision was made on 12.8.10; the lengthy delay was not adequately explained. The applicant had also filed a similar application previously but failed to fix it for hearing. Relying on Khamoni J's reasoning, the applicant should have sought judicial review to quash the judgment adopting the Tribunal's award, not a plaint. Having found against the applicant on these points, the court found it unnecessary to consider the remaining grounds for stay.

p. 2

Legal principles established

#
  • Grant of a stay of proceedings or execution pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the intended appeal, judicial time and expedition
  • A Land Disputes Tribunal decision adopted as a judgment of the Principal Magistrates' court ceases to exist independently; only the adoption judgment may be quashed, and it must be challenged by judicial review rather than by plaint

Court orders

#
  1. 1.Notice of Motion dated 18/12/2015 dismissed
  2. 2.Costs of the application to the Respondent

Authorities

#

Legislation

  • Land Disputes Tribunal Actrepeal in 2012

Cases cited (2)

  • Global Tours and Travels Limited, Nairobi Winding Up Cause No. 43 of 2000, cited in Kenya Power & Lighting Company Ltd V Esther Wanjiru Wokabi [2014] eKLR
    [2014] eKLR
  • Republic v Chairman Land Disputes Tribunal, Kirinyaga District & Another Ex-parte Peter Maru Kariuki
    (2005) eKLR
Jurisdiction invoked
Inherent jurisdiction to grant stay of execution pending intended suit/appeal (order sought under the court's discretion; Land Disputes Tribunal Act repealed)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Benedeta Cheruto Mabwai v William Rono & another [2018] KEELC 1988 (KLR)", Case Analysis (2018). Sotik Land Dispute Tribunal Case No. 13/2010 (Notice of Motion dated 18/12/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1988/eng@2018-08-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.